9911796707
TMI Blog2004 (7) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court in view of the reported decisions of this Court in B. Mohan Krishna v. Union of India and C.B. Lingam v. Vitta Murali Krishna Murthy (1997) 2 A LT (Cri) 100, held that the initial burden is on the accused to establish that the cheque was issued in discharge of a legally enforceable debt and then only the burden shifts to the accused to establish that the cheque issued was not of the nature referred to in Section 138 of the Act. Whereas, it was contended on behalf of the complainant before the Court below that the evidence of P.Ws. 1 to 3 is consistent as to advancing of amount by the complainant to the accused and issuing of Ex.P1 cheque by the accused. Therefore, presumption can be drawn that the cheque was issued for discharging a legally enforceable debt. 3. In B. Mohan Krishna's case (Andh Pra) (supra), it was held as under : ........ the rebuttal presumption under Section 139 of the N.I. Act operates only in favour of a payee or a holder in due course or in favour of a person, without consideration, became the holder of the cheque......... the initial burden is on the complainant to show that the cheque was issued for the discharge of a legally enforceab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility. The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. (Ibid, at p. 65, para 14.) Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused.......... 7. There may not be any dispute as to the ratio laid down in the above decisions. But, the basic facts of this case do not inspire the confidence of the Court to convict the accused for the offence punishable under Section 138 of the Act, whether the accused led by evidence or not in view of the presumption under Section 139 of the Act and rebutted the contentions of the complainant. P.W. 1 stated in his evidence that the accused had dealings with him and he fell due Rs. 88,888/- and that he demanded for payment personally. The accused postponed the payment on several occasions. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. He denied the issuance of the cheque and admitted the contents of the reply notice Ex.P6. He also denied that there was any debt due to P.W. 1. 9. In Ex.P4 legal notice, the complainant merely stated that the accused due to him an amount of Rs. 88,888/- and in spite of repeated demands, the accused had not paid any amount to him. Finally, the accused issued a cheque for Rs. 88,888/- on 20-7-1996 and on presentation of the same in the Bank, it was returned with an endorsement that payment was stopped at the instance of the drawer. The complainant did not say anything in Ex.P4 for what purpose he had given the amount to the accused. He merely stated that the accused due an amount of Rs. 88,888/- to him. But, while examined as P.W. 1, he developed his version and stated that himself and accused were class I contractors and had dealings with him and the accused fell due an amount of Rs. 88,888/-. In the cross examination, he had stated that he gave cash to the accused and he does not remember whether he had withdrawn the amount from the bank on the date of Ex.P1. The complainant also deposed that one of the persons belonging to the accused had filled up Ex.Pl. He did not say the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount was paid to the accused on 20-7-1996 and on that day itself, the cheque was issued. Therefore, the complainant failed to make out any case against the accused and thus the question of raising legal presumption under Section 139 of the Act does not arise. It is obligatory on the part of the Court to raise this presumption in every case where the factual basis for the raising of presumption had been established. In this context, the Court below has rightly held that the initial burden on the part of the complainant was not discharged , since, in this case, the factual basis for raising such presumption had not been established. Under these circumstances, it cannot be said that the factual basis for raising of the presumption under Section 139 of the Act has been established. 'Initial' means that which begins or stands at the beginning, i.e. the factual basis for raising such a presumption as per law. In this case, such facts are missing. 11. In almost identical situation, the apex Court in C. Antony v. K.G. Raghavan Nair held that : 8. Then again, it is to be noticed that the trial Court also took into consideration the plea of the appellant that the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
